Amani Hezron Karibwana @ Hatari vs Republic (Criminal Appeal No. 264 of 2024) [2026] TZCA 363 (27 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: KEREFU. J.A., KAIRO, J.A. And NANGELA, J.AO CRIMINAL APPEAL No. 264 OF 2024 AMANI HEZRON KARIBWANA @ H A T A R I ................... ...... APPELLANT VERSUS THE REPUBLIC .............. ......... ...................................... RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Mbeya) (Nongwa, JO Dated the 8th day of December, 2023 in Criminal Session Case No. 77 of 2021 JUDGMENT OF THE COURT 10th February &. 27th March, 2026 KAIRO, J.A:. The appellant, AMANI HEZRON KARIBWANA @ HATARI, was arraigned before the High Court of Tanzania at Mbeya (the trial court) on a charge of murder, contrary to sections 196 and 197 of the Penal Code, [Cap. 16 R.E. 2023]. The particulars of the charge were that, on 14th September, 2019, at Igawa Village in Mbarali District, Mbeya Region, the appellant murdered one Mrisho Hussein (the deceased), a truck driver employed by Kisma Company.

For a proper appreciation of the circumstances surrounding the incident, it is necessary to briefly restate the material facts as borne out of the record. On 6th September, 2019, the appellant attended an interview at Kisma Company, a transport firm engaged in cross-border haulage to countries such as the Democratic Republic of Congo and Zambia. The deceased was at the material time employed by the same company as a truck driver. The appellant's attendance at the interview was confirmed by Abdullatif Salim (PW1), Juma Athumani Kuzindwa (PW11), and the appellant himself (DW1). PW1 testified that, on 13th September, 2019, at the request of a fellow driver, he gave the appellant a lift from Kibaha Kongowe en route to Chimala, while driving a company truck destined for Congo. However, due to mechanical problems, he only managed to reach Mikumi at about midnight, in the early hours of 14th September, 2019, where he informed the appellant that he could not proceed further. At about 2:00 a.m., the deceased, who was also en route to Congo, arrived at Mikumi. According to PW1, the appellant then boarded the deceased's vehicle and continued the journey with him.

This account was corroborated by PW11, who testified that he encountered both the deceased and the appellant at Ruaha Mbuyuni while travelling in the same direction, and that the appellant was the only passenger in the deceased's vehicle. PW11 further stated that, upon developing a fuel leakage problem near Igawa, he stopped, prompting the deceased to do likewise and inquire about the situation. At that point, the deceased informed him that: the appellant intended to alight at Igawa due to personal commitments. PW11 further testified that, as the leakage worsened, he telephoned the deceased seeking assistance. The call was answered by the appellant, who informed him that he was driving as the deceased was resting. Shortly thereafter, the deceased's vehicle arrived at P W ll's location, and it was the appellant who alighted and inspected the problem. He also indicated that the deceased's vehicle was experiencing mechanical difficulties and that arrangements had been made for repairs at Chimala, where he then proceeded. Approximately twenty minutes later, after crossing Chimala bridge, PW11 came upon the deceased's vehicle stationary in the middle of the road with its engine off. He stopped ahead and

inquired about the deceased's whereabouts. The appellant informed him that the deceased had gone to procure a battery and terminals at Muheza Guest House. PW11 attempted to restart the vehicle but, after repositioning his own vehicle and obtaining a torch, returned to find the appellant missing. Upon inspecting the cabin, he observed blood stains and substantial blood on clothing inside the vehicle. PW11 reported the matter to the police officers from Rujewa Police Station, including H.5550 CpI. Florence (PW2), G.492.5 D/Cpl. Ramadhani (PW5), and G.9928 D/Cpl. Didace (PW9), together with a medical officer, Dominic Kadogo Lawrent (PW8), visited the scene. They recovered a blood-stained wheel spanner from behind the driver's seat. PW5 also collected fingerprint samples from the appellant for forensic examination. The exhibits were initially kept by G.3340 CpI. Mathayo (PW3) and subsequently handed over to H.1351 D/Cpl. Elimwokozi (PW10) for further handling. The wheel spanner and fingerprint samples were forwarded to forensic experts in Dar es Salaam on 26th November, 2019 by WP. 10616 CpI. Flaviana (PW7). A forensic report was subsequently prepared by E.5137 D/Ssgt. Hassan Nassoro Juma (PW12) of the

Forensic Bureau at Police Headquarters. The report was later collected by PF.24203 Tito Peter Maganaga (PW6), who testified as to the condition in which it was received and maintained until its production in court. The wheel spanner and the fingerprint examination report were duly admitted into evidence as exhibits P2. and P5, respectively. In her further testimony, PW2 stated that, in the course of follow-up investigations, the deceased's body was recovered from a roadside location not far from the Igawa-Mbeya road. The body bore a fatal head injury. PW2 prepared a sketch map of the scene, which was admitted into evidence as exhibit PI. A post-mortem examination conducted by PW8 established that the cause of death was traumatic brain and head injury, and the corresponding report was admitted as exhibit P4. PW8 also collected blood samples, which were conveyed by PW10 to the Chief Government Chemist for DNA analysis. At the Chief Government Chemist's office, the samples were received and analysed by Leticia Waitara (PW4), who prepared a report that was admitted into evidence as exhibit P3. PW9, one of the investigating officers, testified that the DNA analysis confirmed

that the blood recovered from the vehicle matched that of the deceased. Later, the appellant was arrested on 18th October, 2019 at Dakawa, Morogoro, by PW10 with the assistance of police informers. PW10 also recorded the appellant's cautioned statement, which, upon being admitted after a trial within a trial, was received in evidence as exhibit P5. Upon evaluating the prosecution evidence, comprising the testimonies of PW1 to PW12 and exhibits PI to P5, the trial magistrate found that the appellant had a case to answer. When called upon to enter his defence, the appellant testified on oath as DW1 and called no witnesses. In his defence, while admitting that he had attended a job interview at Kisma Company in Dar es Salaam on 14th September 2019, he denied the charge of murder, stating that, after the interview did not materialize, he proceeded with his personal engagements. He also raised a defence of alibi, contending that, on 16th or 17th September, 2019, he was at Ruaha Mbuyuni, where PW11 met him and requested a lift to Igawa, which he could not provide due to fuel leakage in his vehicle. He further stated that he was arrested on 10th October, 2019 and taken to Mbarali on 15th October, 2019,

where he was interrogated regarding a person known as Hussein Shaban Baina. He alleged that, he was tortured and beaten with a wheel spanner and was forced to hold it. He further claimed that, he was subsequently charged with the murder of one Mrisho, a person he did not know. At the conclusion of the hearing, and upon evaluating the evidence from both sides, the trial court found that the prosecution had proved its case beyond reasonable doubt. Consequently, the trial court convicted the appellant and sentenced him to death by hanging. Aggrieved by that decision, the appellant has lodged the present appeal against both conviction and sentence. Initially, the appellant filed a memorandum of appeal containing seven (7) grounds. Subsequently, on 4th February, 2026, he filed a supplementary memorandum of appeal containing two (2) additional grounds. On 9th February, 2026, his advocate filed a further supplementary memorandum containing five (5) grounds of appeal. However, all grounds in the original memorandum, save for ground No. 7, were later abandoned. Likewise, the two grounds contained in the supplementary memorandum dated 4th February,

2026 were also abandoned. Accordingly, reliance was placed on the grounds set out in the supplementary memorandum filed on 9th February, 2026, together with ground No. 7 in the original memorandum of appeal dated 19th April, 2024, making a total of six (6) grounds of appeal. For convenience, we find that the grounds of appeal may be grouped under four heads of grievance, namely:

1. That, the tria l court erred in relying on the testim onies o f PW1, PW5, and PW11, which were weak and unreliable;
2. That, the tria l court erred in law in adm itting and relying on exhibit P2 w ithout the prosecution establishing the chain o f custody;
3. That, the tria l court erred in failing to consider the appellant's defence; and
4. That, the prosecution failed to prove its case beyond reasonable doubt. When the appeal was called on for hearing, Mr. Abinel Zephaniah, learned counsel, appeared for the appellant, while Ms. Mwajabu Tengeneza, learned Principal Senior State Attorney, assisted by Ms. Ellen Masululi and Ms. Veronica Mtafya, both learned Senior State Attorneys, appeared for the respondent Republic.

Before delving into the substantive grounds of appeal set out above, we are mindful that this is a first appeal. It is a well-settled legal position that, a first appellate court is not only entitled but also duty-bound, save for a few exceptions, to re-evaluate the entire evidence on record and arrive at its own independent conclusions and findings. In this regard, we are guided by the decision of this Court in Deemay Daat, Hawa Burbai & Nada Daati v. The Republic, [1994] TZCA 80 (5 October 2004) (TanzLII). Essentially, the only limitations to the exercise of this mandate are those articulated in D.R. Pandya v. R. [1957] EA 336 and Jamal A. Tamim v. Felix Francis Mkosamali & Another, 2012 [TZCA] 110 (3 May 2013) (TanzLII). These limitations primarily concern the assessment of the demeanour of witnesses who testified before the trial court, given that the appellate court does not have the advantage of observing such witnesses firsthand. We shall, therefore, be guided by these principles. With respect to the first ground of appeal, Mr. Zephaniah contended that the testimonies of PW1, PW5, and PW11 were unreliable. He argued that, no one witnessed the alleged murder of the deceased and that there was no evidence establishing that: the

deceased's death was caused by a wheel spanner. Regarding PW2, he submitted that, although a fire extinguisher was reportedly found at the scene of the crime, no evidence was adduced to establish whether it was used in the commission of the offence. He further contended that the prosecution witnesses contradicted one another regarding the location where the wheel spanner was recovered. In his view, the appellant's defence was that he had been forced to handle the spanner repeatedly while being subjected to torture. On that basis, counsel argued that it was unclear whether the fingerprints allegedly recovered from the wheel spanner were impressed before or during the alleged torture. Counsel further maintained that it was unsafe to rely on the testimonies of PW1, PW5, and PW11. He pointed out that the person named Salvatory by PW1 was not called as a witness. Similarly, the watchman referred to by PW11 was not called to testify. He submitted that PW11 stated that he saw the appellant on 16th September, 2019 at Ruaha Mbuyuni, a date after the alleged incident had already occurred. In conclusion, counsel submitted that PW11 was unreliable and ought to have been treated as a suspect. 10

For her part, Ms. Mtafya submitted that the respondent Republic opposes the appeal. In response to Mr. Zephaniah's submissions on the first ground, she contended that, although the record of appeal at page 93 indicates that PW11 saw the appellant on 16th September, 2019 at Ruaha Mbuyuni, that date was a typographical error. She argued that this error does not detract from the fact that P W ll saw the appellant in the company of the deceased, who was later found murdered, with his body dumped by the roadside and the vehicle left stranded in the middle of the road. She maintained that the testimonies of PW1, PW5 and P W ll were reliable and alleged contradictions on where the spanner was found were immaterial. According to Ms. Mtafya, what the appellant stated in his defence was an afterthought. We have carefully considered the above rival submissions. The key issue in the first ground of appeal is whether the testimonies of PW1, PW5 and P W ll were unreliable as argued by the appellant Legally speaking, a witness's testimony is considered unreliable when it lacks credibility, consistency, or sufficient probative value to safely support a finding of fact. Courts do not reject evidence lightly; rather, they assess reliability against several well-established i i

factors, such as material contradictions and inconsistencies, lack of corroboration (where necessary), implausibility or inherent improbability, bias, interest or motive to lie, to mention but a few factors. See the decisions of the Court in Said Hemed v. Republic [1987] T.L.R. 117 and George Jonas Lesilwa v. Republic [2.024] TZCA 1270 (10 December 2024) (TanzLII). We have carefully analysed the testimonies of PW1, PW5, and PW11. In our considered view, these witnesses presented a coherent account regarding the person who was last seen in the company of the deceased prior to the discovery of his body by the roadside. PW1 testified that, on 13th September, 2019, he gave a lift to the appellant from Kibaha (Kongowe) to Mikumi, Morogoro, where his vehicle developed a mechanical fault. He further stated that, he saw the appellant board the deceased's motor vehicle and continue with the journey on the material date. This testimony is materially corroborated by PW11, who also testified that he saw the appellant in the company of the deceased and that the appellant was the only person in the deceased's vehicle at the relevant time. The testimony of PW11 is particularly cogent. As a driver employed by the same company and travelling to the same

destination as the deceased, he maintained regular communication with him for purposes of mutual assistance in the event of mechanical problems. PW11 testified that, in the course of that journey, he had several encounters with the appellant. Notably, at one point when he telephoned the deceased, it was the appellant who answered the call and informed him that the deceased was resting. PW11 further testified that, upon later finding the deceased's vehicle stranded in the middle of the road, he inquired from the appellant about the deceased's whereabouts. The appellant responded that the deceased had gone to look for a battery and terminals. However, PW11 subsequently observed that the vehicle's cabin was stained with blood, and that the appellant had disappeared from the scene. The evidence that the vehicle's cabin was blood-stained, and that a blood-stained wheel spanner was recovered from within the cabin, was corroborated by PW5. In our considered view, looking at the above testimonies of PW1, P W ll and PW5, it will be far from difficulties to hold that the witnesses were contradicting each other. The fact that PW11 stated to have seen the appellant on 16th September 2019 at Ruaha

Mbuyuni with the deceased, is a minor contradiction as the date but, taken as a whole, does not negate the fact that the last person to be seen with the deceased was the appellant We held, in Musa Mbelechamo v. Republic [2026] TZCA 51 (17 February 2026) (TanzLII), that minor discrepancies of a de minimis nature do not vitiate a conviction. That approach accords with the maxim de minimis non curat lex — the law does not concern itself with trifles. In view of that, as correctly submitted by Ms. Mtafya, therefore, the fact that PW11 is recorded to have stated that it was on 16th September 2019 he met with the appellant at Ruaha Mbuyuni, was a slip of the pen since, it even defies logic that the deceased who was reported to have been found dead on the morning of 14th September, 2019 was again found alive in the company of the appellant on the 16th of September, 2019. As noted in his submission, Mr. Zephaniah contended that:, the witnesses did not witness the murder and, hence, they cannot be reliable witnesses. In our view, however, that fact alone does not disqualify them as reliable witnesses. As the Court stated in Goodluck Kyando v. Republic [2006] T. L R. 368, every witness is entitled to credence. Worth noting from PW1 and PW11, is the

fact that the appellant as the last person whom they saw in the company of the decease's vehicle and that, in that vehicle he was only with the deceased. In Mathayo Mwalimu & Another v. Republic [2009] TZCA 53 (2 November 2009 (TanzLII), the Court was of the view that: "/If an accused person is alleged to have been the la st person to be seen with the deceased, in the absence o f a plausible explanation to explain away the circum stances leading to the death , he or she w ill be presum ed to be the killer. " We have no scintilla of doubt that the above quoted excerpt from the Court's decision does apply squarely to this case. In view of what PW1, PW11 and PW5 stated in their testimonies, we find the first ground of appeal is devoid of merit. We hereby dismiss it. We now turn to the second ground of appeal. On this issue, Mr. Zephaniah contended that the chain of custody of the wheel spanner, tendered as exhibit P2, as well as the blood samples taken for DNA analysis (exhibit P3), was not established. He submitted that, in the absence of a proper chain of custody, it was erroneous for the trial court to rely on such evidence.

In response, Ms. Mtafya opposed that contention, maintaining that the chain of custody was duly established and that the exhibits were properly admitted and relied upon. For our part, we do not consider it necessary to dwell at length on this ground of appeal. In Paulo Maduka & Others v. Republic [2009] TZCA 69 (28 October 2009) (TanzLII), this Court held that: "B y "chain o f custody” we have in m ind the chronological docum entation and/or paper trail\ showing the seizure , custody, control\ transfer, analysis, and disposition o f evidence, be it physical or electronic. The idea behind recording the chain o f custody, it is stressed, is to establish that the alleged evidence is in fact related to the alleged crim e - rather than, for instance, having been planted fraudulently to make someone appear guilty. Indeed, that was the contention o f the appellants in this appeal. The chain o f custody requires that from the moment the evidence is collected, its every transfer from one person to another m ust be docum ented and that it be provable that nobody else could have accessed it" 16

In the present appeal, the testimonies of PW3, PW4, PW5, PW6, and PW12 sufficiently dispel the doubts raised regarding the chain of custody. PW5 testified that, he recovered exhibit P2 from the cabin of the deceased's vehicle, and that it was blood-stained. PW3, on his part, explained how the exhibit was handed over to him, duly registered in the exhibit register, marked for identification, and securely kept until it was required in court. It is also evident that PW5 had already processed exhibit P2 at the crime scene by collecting samples for forensic analysis. PW12 gave a detailed account of how he received the exhibits, together with a letter bearing Ref. No. MBAL/CID/B.l/7/Vol.VIII/320 dated 26th November, 2019, for purposes of fingerprint examination, and how he subsequently conducted the analysis and transmitted the results. PW6, in turn, testified on how he received the forensic report on the fingerprint examination, the condition in which it was received, and the manner in which it was thereafter handled. On the totality of this evidence, we find no indication of any break in the chain of custody or any possibility of tampering, as insinuated by learned counsel for the appellant.

Similarly, with regard to the blood samples taken for DNA analysis, the testimonies of PW4, PW8, PW9, and PW10 demonstrate that the chain of custody remained intact and uncompromised. We are, therefore, satisfied that the exhibits were properly handled throughout. Consequently, this ground of appeal is devoid of merit and is hereby dismissed. Turning to the third ground of appeal, which faults the trial court for allegedly failing to consider the appellant's defence, learned counsel for the appellant submitted that the trial court erred and urged this Court to re-evaluate the entire evidence on record. We find no merit in this contention. A perusal of the record of appeal, particularly at page 149, clearly shows that the appellant's defence was duly considered. As this Court observed in Kelvin s/o Kelvin Nyondo v. Republic [2024] TZCA 1255 (11 December 2024) (TanzLII), the mere fact that a decision is adverse to an accused person does not, by itself, signify that the trial court failed to consider the defence. In the circumstances, we find no basis for interfering with the trial court's findings. Accordingly, the third ground of appeal is also dismissed.

Turning to the final ground of appeal, learned counsel for the appellant contended that the prosecution failed to prove its case beyond reasonable doubt. He submitted that the alleged murder rested entirely on circumstantial evidence which, in his view, did not irresistibly point to the appellant to the exclusion of all other hypotheses. On that basis, he urged the Court to allow the appeal, quash the conviction, and set the appellant at liberty. In response, Ms. Mtafya opposed that contention and maintained that the prosecution proved its case to the requisite standard. She argued that the trial court properly relied on the appellant's cautioned statement (exhibit P5), the wheel spanner (exhibit P2), the fingerprint report (exhibit PSA), and the circumstantial evidence flowing from the testimonies of PW1, PW5, and PW11. She accordingly urged us to dismiss the ground of appeal. It is trite law that the burden of proving every element of a criminal charge rests upon the prosecution, and such proof must be beyond reasonable doubt (see Said Hemed v. R (supra)). It is equally settled that a conviction may properly be founded on circumstantial evidence, provided that such evidence irresistibly 19 i

points to the guilt of the accused and excludes any other reasonable hypothesis (see Musa Mbelechamo v. Republic (supra), In the present case, it is not in dispute that the prosecution's case rested substantially on circumstantial evidence. However, upon a careful evaluation of the record, we are satisfied that such evidence irresistibly points to the appellant, and to no other person, as the perpetrator of the offence. First, it is established that the appellant attended an interview at Kisma Company on 6th September, 2019 and, on 13th September, 2019, travelled in one of the company's vehicles with PW1 before joining the deceased's vehicle at Mikumi. Second, the appellant was the last person seen, by both PW1 and PW11, in the company of the deceased on the material night. Third, in his cautioned statement (exhibit P5), the appellant gave a detailed account of the events leading to the death of the deceased, including the motive. Fourth, according to finger print forensic report (exhibit P5), the wheel spanner (exhibit P2), recovered from the scene, bore the appellant's fingerprints. Taken cumulatively, these circumstances form a complete chain of evidence which leaves no room for any

reasonable hypothesis other than that it was the appellant who caused the death of the deceased. In law, for the offence of murder to be established, it must be proved that death occurred, that such death was unlawful, that it was caused by the accused, and that the act was accompanied by malice aforethought. In the instant appeal, the evidence of PW8 established that the deceased died a violent and unnatural death. The evidence on record further establishes, beyond reasonable doubt, that it was the appellant who caused that death. As to whether the act was accompanied by malice aforethought, we answer in the affirmative. In Enock Kipela v. Republic [1999] TZCA 7 (10 June 1999) (TanzLII), this Court held that: "... usually, an attacker w ill not declare his intention to cause death or grievous harm. W hether or not he had that intention m ust be ascertained by various factors including the follow ing: The type and size o f the weapon used, the am ount o f force applied, p art or parts o f the body or blow or blows are directed a t or in flicted on, the num ber o f blow s although one blow m ay be sufficient for this purpose, the kind o f injuries inflicted, the attacker's utterances if any made before or after killing,

and the conduct o f the attackers before and after killin g In the present appeal, the appellant expressly disclosed, in his cautioned statement (exhibit P5), the motive behind his actions. In that statement, he stated that: "... nikaendeiea na safari iakin i eneo ia Igawa yalikuwepo m agari m engi ya m izigo yam epaki, hivyo niiiingiza hito g ari katikati ya hayo m agari Hi kum zubaisha dereva M risho aiaie, kw eli niiipoona am elala nikaendesha g ari kuelekea Mbeya... Niiipoona am elala fofofo, nikachukua Spana Kubwa ya g ari iliyokuw a kwenye tool box nikam piga nayo kichw ani kabia hajazinduka...akawa anamwaga damu nyingi... baada ya muda m fupi a lifa riki kw ani m bali na kumpigana Spana nilim kaba shingoni hadi akafariki. ...NHifanya hivyo, kwanza Hi kulipiza kisasi cha kunyimwa kazi katika Kam puni ya Kisma. P iii, n ilih ita ji kuiba m afuta yaiiyokuwepo kwenye g a ri hiyo Hi wapate hasara, na nisingeweza kuiba akiwepo dereva wao..." 22

The English translation of what the appellant stated in the above extract from his cautioned statement is as here below: ".../ continued with the journey, but at the Igawa area there were many cargo trucks parked. So I drove the vehicle in between those trucks in order to lu ll the driver, Mrisho, into fallin g asleep. Indeed, when I noticed that he had fallen asleep, I drove the vehicle towards Mbeya. When I realized that he was fast asleep, I took a large wheel spanner from the toolbox and struck him on the head before he could wake up... he began bleeding profusely. A fter a short while, he died because, apart from hitting him with the spanner, I also strangled him u n til he died....I did this, first, to revenge being denied em ploym ent a t Kism a Company. Secondly, I intended to steal the fu el that was in that vehicle so as to cause them loss, and I would not have been able to do so while their driver was present..." The above-quoted excerpt from exhibit P5, clearly demonstrates that the appellant acted with sufficient malice aforethought when committing the offence. In light of this, we are satisfied that the prosecution proved its case beyond reasonable doubt, and the 23

fourth ground of appeal is devoid of merit. It is accordingly dismissed. Based on the foregoing analysis, and having found ail other grounds of appeal to be without merit, we hold that the appeal in its entirety is devoid of merit. It is therefore dismissed in its entirety. DATED at DODOMA this 26th day of March, 2026. R. J. KEREFU JUSTICE OF APPEAL L.G. KAIRO JUSTICE OF APPEAL D. J. NANGELA JUSTICE OF APPEAL Judgement delivered this 27th day of March, 2026 in the presence of the Appellant in person, Mr. Pastory Machupa, learned State Attorney, for the respondent/Republic, via virtual court and Mr. Christina Mwanandenje, Court Clerk; is hereby certified as true copy of the original. 24